10 news/legal expert


Prenuptial agreements – legally binding or not?


So if prenuptial agreements are no longer contrary to public policy, are they legally binding? asks Sian Davies of Glanvilles. Prenuptial agreements are not currently governed by statute. Instead, case law is paving the way for some radical changes in the way in which these agreements should be considered


What is a prenuptial agreement?


In essence, a prenuptial agreement (also known as an ante nuptial agreement), is ’a contract made between a man and woman before they marry, agreeing on the distribution of their assets in the event of divorce’. Historically, these types of agreements were seen as contrary to public policy and therefore void under English law.


Moving with the times


That approach was considered outdated and so began the move to give consideration to any such agreements in financial proceedings on divorce. They would, at best, be persuasive provided certain


conditions were fulfilled, such as both parties having received legal advice and there having been full financial disclosure beforehand. They would not be enforceable if any outcome would be clearly unfair, or it had failed to provide for any children of the family.


What weight are they given today?


The landmark case of Radmacher (formerly Granatino) v Granatino [2010] UKSC 42 has had a significant impact on the way in which prenuptial agreements will be relied upon in all future cases.


In a nutshell, the husband (a French banker) and the wife (a German heiress), married in London in


1998. The parties entered into a prenuptial agreement in Germany, in which each agreed that, in the event of divorce, neither would make any financial claims against the other.


The parties had two children but separated in 2006. The husband made an application to the High Court for financial relief. Little weight was given to the prenuptial agreement due to the circumstances in which it was entered into.


The wife appealed successfully to the Court of Appeal. The prenuptial agreement should have been given decisive weight.


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The husband appealed to the Supreme Court, his appeal was dismissed. The Supreme Court gave valuable guidance as to the enforceability of prenuptial agreements: • Do the circumstances at the time of making the agreement detract from the weight to be accorded to it? ie


- Did the parties enter into the agreement of their own free will,


- without undue pressure, - informed of its implications, - with financial disclosure?


• Are there circumstances which enhance the weight of the agreement; ie did the parties intend the agreement to be effective?


• Do the circumstances at the time of the order make it fair or just


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Don’t pay a high price for cookies


One of the south’s leading commercial lawyers is urging businesses to take cookies seriously, and she is not taking about the edible kind.


Rachel Mott from Moore Blatch said the small text files collect data about Internet users and monitor a user’s website activity. While they may not identify an individual on their own, if they are linked with a postal or email address the information is subject to data protection legislation.


“We’re finding that too many businesses are still flouting legislation, breaching privacy and could be facing fines of up to £500,000,’’ said Mott. “It would appear that organisations are under the illusion that they can get away with minimal attempts of compliance and that is certainly not the case.’’


She warns that EU law was introduced into the UK in 2011 and requires online providers to secure consent before using cookies.


THE BUSINESS MAGAZINE – SOLENT & SOUTH CENTRAL – NOVEMBER 2013 Sian Davies


to depart from the agreement? Consideration should be given to the reasonable requirements of any children of the family, whether there were pre-acquired assets, and respect for individual autonomy.


So where does that leave us?


As a result of that case, the established principle from the Supreme Court judgement is: ’The Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement’.


So while they are not ’legally binding’, if produced correctly, prenuptial agreements are certainly worth the paper they are written on.


Details: Sian Davies 023-9249-2300 sian.davies@glanvilles.co.uk www.glanvilles.co.uk


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